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94 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010 system of proof, as the aloofness of the adversarial judge is displaced by a more visible arbiter. No doubt, judicial enabling imposes a positive duty in assisting the unrepresented accused in presenting her defence. Essentially, failure to advise an accused of her right to crossexamination, to make closing submissions, to give evidence and to call witnesses among others, will vitiate the proceedings if the accused has suffered prejudice. Several of the cases that have insisted on judicial enabling have married their reasoning with a prerequisite that the judicial officer plays a role in assisting the unrepresented accused to present her case. It has been firmly stated that this represents an essential element of the right to a fair trial. 51 It is clear, therefore, that the expansion of the judicial role is founded on the fair trial imperative. 5. INCIDENCE OF JUDICIAL ENABLING 5.1 Areas covered by the Circular It is now settled that procedural rights should be explained to the unrepresented accused. A number of the areas that require judicial advice were noted in the Circular and will now be considered. 5.1.1 The duty to advise the unrepresented accused of the right to legal representation While it is settled that judicial officers should intervene and advise accused persons of their procedural rights, judicial approach tends to indicate that no legal consequence follows in the event of failure to do so, where the accused has suffered no prejudice. 52 There is no constitutional mandate on the judicial officer to advise the unrepresented accused of her right to legal representation, nor have the courts interpreted the duty as such. Therefore, while a legal duty rests on judicial officers to advise an unrepresented accused of her right to legal representation, this duty is watered-down by the absence of constitutional backing. In the case of Moroka v the state 53 the appellant was not informed of the right to legal representation during the trial. Counsel for the appellant argued on appeal that this was irregular and should vitiate the proceedings. The Court noted that there was a common law right of an accused to access legal advice and legal representation. The Court stated that that right has been enshrined in section 10 of the Constitution. In relation to the issue whether a 51 Gare v The State op.cit. note 30 supra; State v Sethunya [1986] B.L.R.483; State v Bareki [1979-1980] B.L.R. 35. 52 State v Matlhogonolo Masole [1982] 1 B.L.R. 202. 53 [2001] 1 B.L.R. 134 (CA).
UNREPRESENTED ACCUSED IN BOTSWANA 95 judicial officer had a duty to advise an accused of her right to legal representation, the Court held that the duty was not mandatory or peremptory. The Court stated that it is rather a salutary practice which should be followed in every case. 54 In the Court’s view, whether failure to advise the accused will vitiate the proceedings will depend on whether there has been a failure of justice. The Court found that there was no failure of justice. The Court relied on section 13(3) of the Court of Appeal Act 55 which provides that notwithstanding the fact that a point raised on appeal might be decided in favour of the appellant, the court may dismiss the appeal where there has been no substantial miscarriage of justice. The Court stated that the question whether an irregularity has resulted in a failure of justice will depend upon “whether the Court hearing the appeal considers, on the evidence (and credibility findings if any) unaffected by the irregularity or defect, that there is proof of guilt beyond reasonable doubt. If it does so consider, there was no resultant failure of justice.” 56 This decision is most unfortunate. The fact remains that the evidence against an accused may appear overwhelming and there may seem to be proof of guilt beyond reasonable doubt, simply because the accused did not have legal representation. This is because the unrepresented accused might not be able to test the credibility of the evidence and the witnesses as a trained lawyer would. Often, where a lawyer appears halfway through a trial where a conviction seemed inevitable, the lawyer would materially turn around the events in favour of the accused as material discrepancies and weaknesses in the evidence of the prosecution would be unearthed. Therefore, the “overwhelming evidence test” that courts so often use to override material irregularities is not safe-proof. The right to legal representation is a fundamental right, perhaps the most important, since with effective legal representation the accused’s other procedural rights will ultimately be protected. It is the right of all rights. One would think, therefore, that the bearer of such an important right should be informed of it. Unfortunately, the Court did not regard the duty to inform the accused of her right to legal representation as a right in itself. It would appear that the duty was rather regarded as a procedural step, breach of which will merely lead to a simple irregularity. In a criminal trial, the accused has a constitutional right to legal representation. A right is meaningless to the bearer if she is unaware of it. While recognising the duty of judicial officers to inform accused persons of the right to legal representation, the Court ruled on 54 Similar decisions were reached in Rakgole v The State [2008] 1 B.L.R. 139 (CA); Phologolo v The State [2007] 1 B.L.R. 61; Masango v The State [2001] 2 B.L.R. 616; Ramogotho v Director of Public Prosecutions [2007] 1 B.L.R. 334 (CA); Chanda v The State [2007] 1 B.L.R. 400 (CA); Bojang v The State [1994] B.L.R. 146; Leow v The State [1995] B.L.R. 564. 55 Cap 04:01. 56 Moroka v The State op.cit. note 53 supra at p. 140D-E. Citing section 13(3) of the Court of Appeal Act.
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